At Family Matters Law Group, P.A., we frequently encounter the issue of therapeutic privilege when children are involved in individual therapy during custody disputes. This is a critical but often misunderstood aspect of family law cases in Florida. Parents are often unsure who has the right to assert this privilege and whether a therapist can be forced to testify about confidential therapy sessions. Below, we explore the key issues and explain how this is handled in Florida family law.

What Is Therapeutic Privilege?

Therapeutic privilege refers to the legal right to keep certain communications between a therapist and their patient confidential. When the patient is a child, a common question is: who has the authority to assert this privilege on behalf of the child?

In most cases, the child holds the privilege. The information shared in therapy belongs to the child, not the parents, and is protected by the confidential relationship between the child and their therapist. This protection is crucial during emotionally charged custody disputes or other family law matters, where sensitive issues often come to light.

Who Can Assert the Privilege?

While the privilege belongs to the child, it can be asserted by other parties to protect the child's therapeutic relationship. Those who may assert therapeutic privilege on behalf of the child include:

- The Therapist: Therapists often assert the privilege to protect the confidentiality of the therapy sessions. Their role is to ensure the child has a safe space to process emotions and experiences without fear of these discussions being exposed in court.
  
- Guardian ad Litem (GAL): If a guardian ad litem is appointed in the case, they may also assert the privilege on behalf of the child. The GAL's responsibility is to act in the child's best interests, which often includes protecting the confidentiality of therapy.
  
- The Court: In certain situations, the court may become involved to decide whether maintaining confidentiality is in the child's best interest or if the therapist's testimony is necessary for the case.

Can Parents Waive Therapeutic Privilege?

One of the most frequent misconceptions we see at Family Matters Law Group, P.A. is that parents believe they can consent to waive therapeutic privilege on behalf of their child. However, in Florida family law, the privilege belongs to the child, not the parents. Even if both parents agree that they want the therapist to testify or release therapy records, the therapist or guardian ad litem can still assert the privilege.

To override the privilege and compel a therapist to testify, a court order is required. This means that parents must petition the court, and the court must determine whether breaking confidentiality is necessary and in the child's best interest.

When Might a Therapist Be Compelled to Testify?

Forcing a therapist to testify or provide therapy records is not something the courts take lightly. The best interest of the child is always the guiding principle. Courts are cautious about breaking the therapeutic confidentiality because doing so can damage the trust between the child and their therapist.

However, in some extreme cases, the court may decide that the therapist's testimony or records are necessary, such as:

• Allegations of Child Abuse: If there are serious allegations of child abuse, the court may allow the therapist to testify to protect the child's safety.
• Serious Mental Health Concerns or Allegations: In certain cases, the court may deem it necessary for a therapist to testify if the child's mental health is a central issue in the case.

The Process for Releasing Confidential Information

If a parent or party involved in the case believes the therapist's testimony is essential, they must go through a legal process to request it. Here's how that typically works:

1. Subpoena or Request for Documentation: A formal request for testimony or therapy records is issued.
  
2. Assertion of Privilege: In most cases, the therapist or guardian ad litem will assert the privilege, refusing to comply with the request.
  
3. Court Hearing: A hearing is held to decide whether the privilege should be waived. The court carefully considers the best interests of the child, the potential harm to the therapeutic relationship, and whether the information is crucial to the case.
  
4. Court Order: If the court determines the testimony or records are necessary OR if the Court finds an exception to the privledge, a court order will be issued, allowing the therapist to provide the requested information.

Why Protecting the Therapeutic Relationship Is Essential

At Family Matters Law Group, P.A., we emphasize the importance of protecting the therapeutic relationship between a child and their therapist. Therapy can be a critical component of a child's emotional well-being, especially during stressful family disputes. If confidentiality is breached, it can damage the child's trust in their therapist and disrupt the healing process.

The courts and attorneys in Florida family law cases are careful to ensure that confidentiality is only broken in the rarest of circumstances. Protecting the child's safe space in therapy is often a top priority.

Conclusion

Therapeutic privilege for children in therapy is a complex and sensitive issue in Florida family law. At Family Matters Law Group, P.A., we work hard to balance the child's right to confidentiality with the needs of the court and the parents involved in custody disputes. If your child is in therapy and you are facing a custody case, it's critical to understand your legal options and the role of therapeutic privilege. Our team is here to guide you through the process, always keeping your child's best interest at the forefront.